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COMMONWEALTH PENNSYLVANIA v. DONALD R. THINNES (01/18/79)

decided: January 18, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
DONALD R. THINNES, APPELLEE



No. 610 April Term, 1978, Appeal from the Order dated January 12, 1978 of the Court of Common Pleas of Allegheny County, Pennsylvania at Civil Division No. SA 769 of 1977.

COUNSEL

Virginia I. Cook, Assistant City Solicitor, Pittsburgh, for Commonwealth, appellant.

James G. Dunn, Pittsburgh, for appellee.

Albert J. Zangrilli, Jr., Pittsburgh, for amicus curiae University of Pittsburgh.

Cercone, Wieand and Lipez, JJ.

Author: Wieand

[ 263 Pa. Super. Page 81]

On May 13, 1977, at or about 5:00 o'clock, A.M., Sgt. James F. McCullough and Officer James H. Fitch, both employed as policemen by the University of Pittsburgh, stopped for coffee at a White Tower Restaurant on North Craig Street in the City of Pittsburgh. The restaurant, a private commercial enterprise, was located directly across the street from the University of Pittsburgh's Urban Research Building. While the campus policemen were drinking coffee, Donald R. Thinnes, the appellee, entered. He was intoxicated, became loud, and verbally abused a waitress. When McCullough told him to leave or be arrested, appellee directed his verbal abuse at McCullough. An effort by McCullough to evict Thinnes resulted in a scuffle. Fitch came to McCullough's assistance, however, and Thinnes was subdued. He was then arrested and charged with aggravated assault on a police officer, resisting arrest, and disorderly conduct.

A hearing was held before a magistrate in Allegheny County, and Thinnes was found guilty of disorderly conduct, a summary offense. The assault and resisting arrest charges, however, were dismissed. Thinnes appealed his summary conviction to the Court of Common Pleas of Allegheny County, where he received a hearing de novo. At the close of the Commonwealth's case, defendant offered a demurrer to the evidence. The basis for the demurrer was the alleged lack of authority of campus policemen to make an off-campus arrest. The trial judge said: "I am going to sustain the demurrer in this case. I find that this governs the case, that is 71 Purdon's 646 takes precedence over title

[ 263 Pa. Super. Page 8222]

, and I will decide it on that ground."*fn1 The order which the court entered, however, adjudged the defendant "Not Guilty of the Offense of Disorderly Conduct."

Appellee contends that the Commonwealth cannot appeal from a not guilty verdict. We agree and will dismiss the appeal.

It is well settled that the Commonwealth may not appeal from a verdict of "Not Guilty" entered by the trial court in a criminal prosecution, and this is so whether the prosecution be by indictment or by summary proceeding. Commonwealth v. Ray, 448 Pa. 307, 292 A.2d 410 (1972); Commonwealth v. Haines, 410 Pa. 601, 190 A.2d 118 (1963); Commonwealth v. Ferrone, 218 Pa. Super. 330, 280 A.2d 415 (1971); Commonwealth v. Lodge No. 148, L. O. O. M., 188 Pa. Super. 531, 149 A.2d 565 (1959). A verdict or judgment of acquittal, of course, must be distinguished from an order sustaining a ...


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